Comrade M. Z. Nzidee & Ors. V. Comrade Justice Kootu & Ors. (2006)

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MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

In the determination of this appeal, I find the introduction/summary of facts made in the Respondent’s brief as comprehensive and representative of all the crucial facts of this appeal. I have reproduce same with some essential modification as part of this judgment. The abridged facts of the appeal are as follows:-

This is an appeal against the ruling of the Hon. Justice C. I. Uriri sitting at the Port Harcourt Division of the High Court of Rivers State.

All the parties in this appeal said to be are members of a trade union called Nigeria Civil Service Union (hereinafter called “The Union”). It is the 8th defendant/appellant. The Plaintiffs/Respondents and 1st – 5th defendants/appellants are from the Rivers State Council of The Union. The 6th and 7th defendants/appellants are the State Secretary and National President of The Union respectively.

By the Constitution and Code of Ethics of The Union (2001) hereinafter called “The Union Constitution”), elections; into executive offices are to be conducted once the tenure of four years expires. And so when the tenure of the Rivers State Executive is said to have expired on the 4/8/2004, and (1st – 5th appellants) elections were schedule for September 8th, 2004.

For some reasons, the election of 8th September, 2004 became inconclusive. The Union Constitution, (see rule 27 (ix), provides that at the expiration of the tenure of four years and a subsequent dissolution of the executive committee, a caretaker committee should be appointed in the event of an inconclusive election to produce substantive officers. Rather than establish a caretaker committee as provided by the Union Constitution, the 6-7th appellants are said to have declared that the expired term of the executive of the 1st – 5th appellants should continue; and “the status quo maintained”.

Aggrieved, the Respondents filed this suit as financial members to challenge a perceived breach of the Union Constitution. The Respondents also filed two motions for injunction. The exparte application was not taken as the learned trial judge ordered that the appellants be put on notice. The writ of summons is at pages 1 & 2. The motion exparte is at pages 4 – 5 and the supporting affidavit is at pages 6 – 9. The Union Constitution is at pages 10-34; and 50-74. The motion on notice is at pages 44 and 45 whilst the affidavit in support is at page 46 – 49.

The appellants entered an appearance and also filed a preliminary objection challenging the jurisdiction of the trial Court (see pp. 92-93 of the record)

While the argument on the preliminary objection was still on, the court was informed by respondent’s counsel that the subject matter of the dispute in court had been interfered with i.e. that the appellants had gone ahead to conduct an election to fill the vacant office whilst suit was pending with a motion on notice for interlocutory injunction.

The Court heard respondents’ counsel’s complaint and the response from the appellants and their counsel (see page 130 of the record). Mr. Mbagwu of Counsel admitted that indeed elections were held to fill the vacant executive offices on 30/11/04. This response the learned trial Judge considered to be a confession.

The learned trial judge heard submissions from 5 senior members of the Bar present in Court at the time as amicii curiae (see Pages 104 and 105).

The learned trial Judge reasoned that if the election was allowed to stand, there would be nothing left for the Court to determine in the main suit. In a considered bench ruling his lordship ordered that the election conducted while the main suit and the motion on notice were still pending, stand nullified.

The contemnors were however discharged with a caution to sin no more. The ruling of the court is at pages 105 – 107 also at pp.108-111 of the records.

The Respondent’s brief raised a preliminary objection as to the competence of the appeal. An Appellant’s Reply brief was filed in response to the P. O. both of which shall be considered anon.